STATE OF NEW JERSEY VS. MELVIN R. DOUGLASÂ (14-04-1146, CAMDEN COUNTY AND STATEWIDE) ( 2017 )


Menu:
  •                         NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court."
    Although it is posted on the internet, this opinion is binding only on the
    parties in the case and its use in other cases is limited. R.1:36-3.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-2047-15T1
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    MELVIN R. DOUGLAS,
    A/K/A MELVIN DENNIS,
    MELVIN DOUGLAS,
    FUQUQN HALL,
    Defendant-Appellant.
    _______________________________
    Submitted May 10, 2017 - Decided July 18, 2017
    Before Judges Lihotz and Whipple.
    On appeal from Superior Court of New Jersey,
    Law Division, Camden County, Indictment No.
    14-04-1146.
    Joseph E. Krakora, Public Defender, attorney
    for appellant (Alyssa Aiello, Assistant Deputy
    Public Defender, of counsel and on the
    briefs).
    Christopher S. Porrino, Attorney General,
    attorney for respondent (Sarah C. Hunt, Deputy
    Attorney General, of counsel and on the
    brief).
    PER CURIAM
    Defendant Melvin R. Douglas appeals from a November 2, 2015
    conviction, entered following his guilty plea to fourth-degree
    possession of a controlled dangerous substance (CDS), marijuana,
    with intent to distribute, N.J.S.A. 2C:35-5(a)(1), and third-
    degree distribution of a CDS within 1000 feet of school property,
    N.J.S.A. 2C:35-7.         The trial judge sentenced defendant to five
    years     in    state    prison,   with       a   two-year   period   of    parole
    ineligibility.
    On appeal, defendant argues the judge erroneously denied his
    motion to suppress drug evidence discovered following an illegal
    arrest.    More specifically, defendant asserts:
    POINT I
    [DEFENDANT'S]   ARREST    FOR   LOITERING   IN
    VIOLATION OF N.J.S.A. 2C:33-2.1 WAS INVALID
    BECAUSE THAT STATUTE IS UNCONSTITUTIONAL.
    BECAUSE THE INVALID ARREST RENDERS THE SEARCH
    INCIDENT THERETO CONSTITUTIONALLY DEFECTIVE,
    THE MARIJUANA SEIZED FROM [DEFENDANT'S] PERSON
    SHOULD HAVE BEEN SUPPRESSED (Not raised
    below).
    A.   New Jersey's Drug-Loitering Statute is
    Unconstitutionally Vague and Overbroad.
    B.   New   Jersey's  Drug-Loitering   Statute
    Violates the Fourth Amendment Because it
    Allows Police to Arrest an Individual on
    Less Than Probable Cause.
    C.   [Defendant's]   Invalid   Arrest,   Made
    Pursuant to an Unconstitutional Statute,
    Renders the Subsequent Search of his
    Person Constitutionally Defective.
    2                                A-2047-15T1
    POINT II
    THE POLICE DID NOT HAVE PROBABLE CAUSE TO
    BELIEVE THAT [DEFENDANT] COMMITTED A VIOLATION
    OF N.J.S.A. 2C:33-2.1.        THEREFORE, THE
    MARIJUANA FOUND ON [DEFENDANT'S] PERSON WAS
    THE PRODUCT OF AN UNLAWFUL ARREST AND MUST BE
    SUPPRESSED.
    POINT III
    OFFICER RAMIREZ ABUSED HIS DISCRETION BY
    SUBJECTING [DEFENDANT] TO A FULL CUSTODIAL
    ARREST FOR COMMITTING A DISORDERLY PERSONS
    OFFENSE.
    We reject these arguments and affirm.
    These facts were presented during the suppression hearing,
    to support defendant's December 24, 2013 arrest.                     The State
    presented testimony from the arresting officer, Hector Ramirez,
    and Officer Robert Fesi, of the Camden County Police Department,
    who monitored a series of live feed surveillance video streams,
    while   stationed      at   the   Real       Time   Tactical    Operations    and
    Information Center (Tactical Information Center).
    At approximately 1 p.m., Officer Fesi turned a strategically
    placed "Eye in the Sky" camera toward the intersection of Filmore
    and Viola Streets, known as a "narcotics distribution area[]."                 He
    confirmed   the   cameras     were   working        properly.     Officer    Fesi
    monitored the activity of defendant and another individual, later
    identified as Keith Council, in real time.              Over the course of an
    3                              A-2047-15T1
    hour, Officer Fesi watched the two men, whom he believed, based
    upon his training and experience, engaged in seven to eight "street
    level narcotics distribution[s]." More specifically, Officer Fesi
    testified:
    [V]ehicles would pull over to the side of the
    road.   One male would approach the vehicle,
    have a short transaction, conversation with
    the vehicle.    The vehicle would pull off.
    After numerous times — about seven or eight
    times I saw this, this was consistent with CDS
    transaction[s].
    . . . .
    The vehicle would pull up -- somebody would
    waive [sic] the vehicle over, they would pull
    up, he would walk up to the driver's side of
    the vehicle, an interaction would take place,
    and then the vehicle would drive off.
    Officer Fesi stated the activity he observed was consistent
    with street drug sales. He radioed command, who dispatched Officer
    Ramirez and his partner Jay Rivera, to the area.         Officer Ramirez
    established   radio   contact   with   Officer   Fesi,   who   related    a
    description of the two men, based on their clothing.            Officers
    Ramirez and Rivera arrived on the scene; Officer Ramirez stopped
    defendant and Officer Rivera stopped Council. Officer Fesi watched
    the events as they occurred.     Officer Ramirez relayed a physical
    description of defendant and Council to Officer Fesi, and Officer
    Fesi confirmed defendant and Council were the individuals he
    4                              A-2047-15T1
    observed engaging in the transactions.      Officer Ramirez placed
    defendant and Council under arrest.
    On cross-examination, the defense challenged the limited
    training and experience of Officer Fesi, who worked for the
    Tactical Information Center for one-year prior to defendant's
    arrest. Officer Fesi confirmed he could not identify the suspects'
    faces because of the video quality, and based his identification
    only on their clothing.
    During the hearing, Officer Fesi was asked to narrate events
    shown on the video taken from the Eye in the Sky camera.          He
    stated: "the white truck pulled up, stopped, . . . one of the
    males went up to the window, and then the male ran away, returned
    with something, and the truck drove off."   When the red car drove
    up he observed "the exact same thing."
    Officer Fesi could not state which of the two men shown on
    the video was defendant.   Additionally, he admitted, he never saw
    an actual exchange of money for an object between the vehicle's
    occupants and defendant, because a tree blocked the camera's view.
    After the defense played the first fifteen-minute segment of
    the un-redacted one-hour video recording, the State objected.
    After a lengthy colloquy, the defense declined to continue showing
    the video.   In the course of redirect, based on the State's
    question, this colloquy occurred:
    5                         A-2047-15T1
    THE COURT: What actions did you actually
    observe individuals engaging in that you
    concluded were drug transactions? What did
    you actually see?
    [OFFICER FESI]:   What I actually saw?
    THE COURT:    Based on the tree, and the
    arguments of counsel, I want to know exactly
    what you physically saw with respect to the
    actions.
    [OFFICER FESI]: What I saw was a man standing
    on the corner, vehicle pull up, the man engage
    in short conversation with the vehicle, and
    then walk away and the vehicle drove away
    numerous times, and based on my training and
    experience we look at the totality of the
    circumstances, and that is street level
    narcotics distribution in a designated high
    CDS area.
    THE COURT: All right. Did you . . . see the
    individual who walked up to the vehicle have
    anything in that individual's hand?
    [OFFICER FESI]: No, not from the video, I
    couldn't see --
    THE COURT:   Did you see anything exchanged by
    either?
    [OFFICER FESI]:   No.
    Next, Officer Ramirez testified.   He acknowledged he received
    clothing descriptions of two suspects from Officer Fesi and was
    directed to their location.   When Officer Fesi confirmed Officer
    Ramirez had stopped the suspect he observed, Officer Ramirez placed
    defendant under arrest and patted him down.     Officer Rivera was
    directed to, and arrested Council.    On cross-examination, Officer
    6                         A-2047-15T1
    Ramirez stated, based on the information provided by Officer Fesi,
    he initially arrested defendant for loitering to commit a drug
    offense.
    During processing at the police station, defendant removed
    his jacket and a package of marijuana fell from his sleeve.
    Officer        Ramirez     recovered      "15-20"    bags     of     marijuana.
    Consequently, the charges to which defendant pled were issued.
    In an oral opinion, rendered on January 28, 2015, the judge
    concluded Officer Ramirez had probable cause to arrest defendant
    based upon the observations Officer Fesi communicated directly to
    him.      A reasonable belief defendant was engaged in criminal
    activity was supported by the testimony of Officers Fesi and
    Ramirez, which was found credible.              The officers related their
    respective personal knowledge, training and experience in drug
    distribution      activity,      and   each   separately    characterized    the
    specific area of defendant's arrest as an area known for street
    drug sales.
    Although Officer Fesi could not identify facial features, see
    the    exact    exchange    or    hear   conversation      between   defendant,
    Council, and the drivers, he saw seven or eight vehicles stop in
    the area where defendant and Council stood.             He also explained the
    same repeated pattern of activity: one of the two men went to the
    driver's side window, ran away then returned to the driver's side
    7                              A-2047-15T1
    window with an object, then the vehicle drove away.              Officer Fesi
    saw this happen "exactly the same" way, over the course of the
    hour, which led him to conclude defendant was engaged in drug
    distribution.      The portion of the video played during Officer
    Fesi's testimony corroborated his stated observations.
    The clothing description of the suspects, as provided by
    Officer Fesi, enabled Officer Ramirez to spot defendant and place
    him under arrest.         Officer Fesi verified the man in custody was
    the man he observed engaged in the suspected drug activity.             After
    reviewing the elements of the charged offenses, the judge concluded
    Officer Fesi's observations provided a well-grounded suspicion
    defendant was engaged in the charged drug distribution offenses.
    For   the   first    time   on   appeal,   defendant   challenges    the
    constitutionality     of     N.J.S.A.       2C:33-2.1,   which   criminalizes
    loitering for the purpose of distributing drugs, the basis upon
    which defendant was arrested.1               Defendant argues because the
    1
    This court has noted:
    Interestingly,   the   word  "loitering"   is
    contained only in the statute's title as
    appearing in New Jersey Statutes Annotated –
    "Loitering for purpose of illegally using,
    possessing or selling controlled substance" —
    and appears nowhere in the actual text of the
    statute, which prohibits, when coupled with
    other conduct, the "wander[ing], remain[ing]
    8                             A-2047-15T1
    statute is overbroad his arrest was invalid. Recognizing he failed
    to raise the issue before the trial judge, defendant maintains
    freedom from constitutionally defective arrests is a matter of
    great   public   concern,   which   affects   fundamental    due    process
    rights.    See Spiegle v. Seaman, 
    160 N.J. Super. 471
    , 481 (App.
    Div. 1978) (finding it "necessary to determine propositions not
    raised below in order to protect the fundamental rights of a
    party").
    "Generally, an appellate court will not consider issues, even
    constitutional ones, which were not raised below."                 State v.
    Galicia, 
    210 N.J. 364
    , 383 (2012); see also State v. Walker, 
    385 N.J. Super. 388
    , 410 (App. Div.), certif. denied, 
    187 N.J. 83
    (2006).    Two well-established exceptions to the overarching rule
    allow   review   of   issues   regarding   challenges   to   the    court's
    jurisdiction, and to "matters of great public interest."              State
    v. Robinson, 
    200 N.J. 1
    , 20 (2009) (citing Nieder v. Royal Indem.
    Ins. Co., 
    62 N.J. 229
    , 234 (1973)).        We nonetheless conclude the
    statute passes constitutional scrutiny.
    or prowl[ing]" in a public place. N.J.S.A.
    2C:33-2.1(b)(1).
    [State v. Gibson, 
    425 N.J. Super. 523
    , 529 n.4
    (App. Div. 2012), rev'd on other grounds, 
    218 N.J. 277
    (2014).]
    9                               A-2047-15T1
    General loitering statutes have successfully been challenged
    as overbroad.    When the prohibited conduct is vague, such statutes
    will   not    withstand   due   process   scrutiny.   See   Giaccio    v.
    Pennsylvania, 
    382 U.S. 399
    , 402-03, 
    86 S. Ct. 518
    , 520, 
    15 L. Ed. 2d
    447 (1966) ("It is established that a law fails to meet the
    requirements of the Due Process Clause if it is so vague and
    standardless that it leaves the public uncertain as to the conduct
    it prohibits . . . .").     The United State Supreme Court recognized
    the freedom to loiter for innocent purposes
    is part of the "liberty" protected by the Due
    Process Clause of the Fourteenth Amendment.
    We have expressly identified this "right to
    remove from one place to another according to
    inclination" as "an attribute of personal
    liberty" protected by the Constitution.
    Williams v. Fears, 
    179 U.S. 270
    , 274, 21 S.
    Ct. 128, 
    45 L. Ed. 186
    (1900); see also
    Papachristou v. Jacksonville, 
    405 U.S. 156
    ,
    164, 
    92 S. Ct. 839
    , 
    31 L. Ed. 2d 110
    (1972).
    Indeed, it is apparent that an individual's
    decision to remain in a public place of his
    choice is as much a part of his liberty as the
    freedom of movement inside frontiers that is
    "a part of our heritage," Kent v. Dulles, 
    357 U.S. 116
    , 126, 
    78 S. Ct. 1113
    , 
    2 L. Ed. 2d 1204
    (1958), or the right to move "to
    whatsoever place one's own inclination may
    direct"     identified     in     Blackstone's
    Commentaries. 1 W. Blackstone, Commentaries
    on the Laws of England 130 (1765).
    [City of Chi. v. Morales, 
    527 U.S. 41
    , 53-54,
    
    119 S. Ct. 1849
    , 1857-58, 
    144 L. Ed. 2d 67
    ,
    78-79 (1999) (footnotes omitted).]
    10                          A-2047-15T1
    New Jersey has no general anti-loitering laws.               See State v.
    Crawley, 
    90 N.J. 241
    , 247 (1982) ("In view of this legislative
    history, we conclude that the absence of a loitering proscription
    from the Code reflects a state policy to decriminalize such
    activity.").
    Applying these standards, we examine the challenged criminal
    statute   to        determine     whether      the    prohibited    conduct     is
    sufficiently described.          See State v. Galloway, 
    133 N.J. 631
    , 658-
    59   (1993)     (holding        courts     must   "construe   penal     statutes
    strictly").         Defendant's arrest was based on N.J.S.A. 2C:33-
    2.1(b), which provides:
    [a] person . . . commits a disorderly persons
    offense if (1) he wanders, remains or prowls
    in a public place with the purpose of
    unlawfully . . . distributing a controlled
    dangerous substance . . . ; and (2) engages
    in conduct that, under the circumstances,
    manifests a purpose to . . . distribute a
    controlled dangerous substance.
    Subsection (c) lists "[c]onduct that may, where warranted
    under the circumstances, be deemed adequate to manifest a purpose
    to   obtain    or    distribute    a     controlled   dangerous    substance    or
    controlled substance analog" to include, but is not limited to:
    (1) Repeatedly beckoning to or stopping
    pedestrians or motorists in a public place;
    (2) Repeatedly passing objects to               or
    receiving   objects   from   pedestrians             or
    motorists in a public place;
    11                             A-2047-15T1
    (3) Repeatedly circling in a public
    place in a motor vehicle and on one or more
    occasions passing any object to or receiving
    any object from a person in a public place.
    Subsection (d) of the statute further instructs the activity used
    to satisfy element (1) may not be used to satisfy element (2).
    N.J.S.A. 2C:33-2.1(d). Therefore, the State must prove a defendant
    (a) was wandering, remaining, or prowling (b) in a public place,
    (c) with the purpose of unlawfully distributing CDS, and (d)
    engaged in activities tending to manifest the purpose to unlawfully
    distribute CDS.       
    Ibid. On its face,
    N.J.S.A. 2C:33-2.1 is not directed to general
    loitering.         "It is apparent . . . the statute was enacted to
    protect the quality of life in public places by interdicting
    persons who linger or circulate there for the specific purpose of
    engaging in drug transactions."          State v. Kazanes, 
    318 N.J. Super. 421
    , 425 (App. Div. 1999).            "In too many neighborhoods in New
    Jersey, drug dealers and drug buyers have transformed street
    corners     into    open-air   drug   markets.   Meanwhile,    residents    and
    legitimate merchants see their neighborhoods filled with the decay
    and violence that inevitably accompany the drug trade."                
    Id. at 425
      n.1   (quoting     Governor     Florio's   statement    to   Legislature
    regarding P.L. 1991, c. 383).
    12                              A-2047-15T1
    The Supreme Court has made clear the standards governing
    arrest for the criminal conduct described therein.
    The right to walk freely on the streets of a
    city without fear of arbitrary arrest is one
    of the guarantees protected by the Fourth
    Amendment of the United States Constitution
    and Article I, Paragraph 7 of the New Jersey
    Constitution.   A person cannot be arrested
    unless there is probable cause to believe that
    he has committed or is committing an offense.
    An arrest without probable cause is an
    unreasonable seizure in violation of both the
    Federal and State Constitutions.
    [State v. Gibson, 
    218 N.J. 277
    , 281 (2014).]
    The non-exhaustive examples of behavior that may be consistent
    with someone attempting to buy drugs includes some form of contact
    with other people or motorists, including passing objects or
    beckoning to pedestrians.    The identified conduct is specific and
    cannot be described as "mere loitering."2 Unlike general statutory
    prohibitions, N.J.S.A. 2C:33-2.1 defines conduct with a purpose
    and intent not simply hanging around in a place for no apparent
    reason.   Accordingly, a police officer cannot arrest an individual
    unless that individual's behavior is corroborative of some illegal
    activity.
    2
    "As commonly understood, loitering suggests remaining or
    lingering in a location for some indefinite period for no apparent
    purpose."   
    Gibson, supra
    , 218 N.J. at 289-90 (citing various
    dictionary definitions of the word "loiter").
    13                          A-2047-15T1
    We reject defendant's vagueness challenges.         We conclude the
    statute sufficiently provides standards that inform the public of
    the nature of prohibited conduct.3        Despite defendant's arguments
    to the contrary, our review of the record of the suppression
    hearing    satisfies   us   the   State   proved   not   only   reasonable
    suspicion, but also probable cause to stop and arrest defendant
    for violating N.J.S.A. 2C:33-2.1.
    Generally, probable cause "means less than legal evidence
    necessary to convict though more than mere naked suspicion." State
    v. Daniels, 
    393 N.J. Super. 476
    , 486 (App. Div. 2007) (quoting
    State v. Mark, 
    46 N.J. 262
    , 271 (1966)).       "Probable cause has been
    characterized 'as a common-sense, practical standard.'"              
    Ibid. (quoting State v.
    Novembrino, 
    105 N.J. 95
    , 120 (1987).           "Probable
    cause exists if at the time of the police action there is 'a well
    grounded suspicion that a crime has been or is being committed.'"
    
    Ibid. (quoting State v.
    Waltz, 
    61 N.J. 83
    , 87 (1972)).              The
    standard is objective and considers the totality of all facts and
    3
    Recently, the New Jersey Supreme Court discussed N.J.S.A.
    2C:33-2.1, without triggering constitutionality questions.      See
    State v. Miles, __ N.J. __ (2017) (vacating successive prosecutions
    for loitering for the purpose of distributing drugs and then
    distribution of drugs in a school-zone because the former included
    the same elements of proof established by the same evidence, making
    it the same offense, barred by double jeopardy). In Gibson, the
    Court cited N.J.S.A. 2C:33-2.1 with approval as providing a
    satisfactory description of conduct amounting to loitering.
    
    Gibson, supra
    , 218 N.J. at 290.
    14                             A-2047-15T1
    circumstances.     "Although several factors considered in isolation
    may not be enough, cumulatively those pieces of information may
    'become   sufficient    to    demonstrate   probable        cause.'"      
    Ibid. (quoting State v.
    Zutic, 
    155 N.J. 103
    , 113 (1998)).
    Here, for an hour, police surveilled an area known for open-
    air drug transactions.       Defendant moved about the block, as he and
    Council approached seven or eight motorists who pulled over.
    Defendant or Council spoke to each driver, left briefly, then
    returned to the stopped car with an object.           After an interaction,
    the driver pulled away.         Although Officer Fesi acknowledged he
    could not see an actual transfer of money for small objects because
    of a tree blocking the camera view, the repeated conduct was
    consistent with the examples of conduct deemed to manifest a
    purpose to distribute drugs.        While in a public place defendant
    repeatedly   met   stopped    motorists   to   whom    he    passed    objects.
    Officer Ramirez relied on Officer Fesi's information and clothing
    description, see State v. Crawley, 
    187 N.J. 440
    , 457 (permitting
    police to rely on information transmitted by one officer to
    another), cert. denied, 
    549 U.S. 1078
    , 
    127 S. Ct. 740
    , 
    166 L. Ed. 2d
    563 (2006), to arrest defendant.
    Considering all of the facts recited above, we conclude the
    officers had "a 'well grounded' suspicion that a crime . . . [was]
    being committed."      
    Waltz, supra
    , 61 N.J. at 87.            Consequently,
    15                                  A-2047-15T1
    probable cause existed to arrest defendant for the disorderly
    persons offense of wandering, in violation of N.J.S.A. 2C:33-2.1.
    
    Daniels, supra
    , 393 N.J. Super. at 485.
    Next,   the    fact    defendant    was   initially   arrested     for
    wandering, in violation of N.J.S.A. 2C:33-2.1, is immaterial.
    Subsequent discovery of twenty-one bags of marijuana in his jacket
    sleeve, during the search incident to arrest, provided the basis
    to charge him with fourth-degree intent to distribute, N.J.S.A.
    2C:35-5(a)(1), and third-degree intent to distribute in a school
    zone, N.J.S.A. 2C:35-7, the drug offenses to which he pled guilty.
    The initial arrest on the lesser charge did not invalidate the
    arrest or the final charges.
    Following     review   of   defendant's   remaining   arguments,    we
    reject them as lacking merit.        We reject, as invited error, the
    claim regarding the judge's failure to view the entire one-hour
    video.   See State v. Simon, 
    79 N.J. 191
    , 205 (1979) (stating that
    errors originating with a defendant generally cannot serve as a
    basis for reversal on appeal).           Defendant was given numerous
    opportunities to present the video evidence in its entirety, and
    specifically informed the judge it was not necessary.
    Affirmed.
    16                            A-2047-15T1